Interim Decision #2401
MATTER OF STUVZ
In Visa Petition Proceedings
A-20099775
Decided by Board November 20, 1974 and March 18, 1975
Decided by Attorney General June 30, 1975
The petitioner, a naturalized United States citizen is married to the beneficiary's father;
the beneficiary was born over 3 years after this marriage as the result of an illicit
relationship between the married natural father and a woman to whom he was never
married. The petitioner alleges that her husband, the beneficiary's father, has supported the child since it was abandoned by its mother; that the petitioner took care of
the child about 2 years in Jamaira; and that the petitioner and her husband adopted the
child in Jamaica, when the child was 14 years and nine months old. The district director
denied the vim petition filed under section 201(b) of the Immigration and Nationality
Act. The Board sustained petitioner's appeal finding a stepchild relationship arose even
though the illegitimate child was born after the present marriage, based on the evidence
that there is an existing bonafide family unit. It held that adulterine children, irrespective of the time of their birth, should be treated like other illegitimate children under
section 101(b)(1)(13) of the Act. On an application to reconsider by the Service, the prior
decision was affirmed. The Attorney General, on review, affirms the grant of the
petition; regardless of whether the illegitimate child was born before or after the
present marriage, the granting of the petition is consistent with the legislative history
and policy of section 101(b)(1)(B) of the Act, where, as in this case, the spouse of the
natural parent desires to raise that child and to maintain the family unit as evidence by
support, adoption, etc. [Matter of Young, 12 I. & N. Dec. 340, 544 (BM. 1967) and
Matter of Gre on,
11 I. & N. Dec. 546 (BIA 1965) were overruled by the Board insofar as
they are incolsistent with this opinion.]
ON BEHALF 0:? PETITIONER: ON BEHALF OF SERVICE:
David Scheinfeld, Esquire Irving A. Appleman
41 East 42nd Street Chief Trial Attorney
New York, New York 10017
Sam Bernsen
General Counsel
BEFORE THE BOARD
(November 20, 1974)
The United States citizen petitioner applied for immediate relative
status for the beneficiary as her child under section 201(b) of the Immigration and Nationality Act. In a decision dated March 1, 1974 the
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district director denied the petition. The petitioner has appealed from
that decision. The appeal will be sustained.
The petitioner was married on January 1, 1955 in Jamaica. On June
19, 1958 the beneficiary was born in Jamaica to the petitioner's husband
and a woman other than the petitioner. An affidavit signed by the
petitioner and her husband, the beneficiary's father, contains the following additional averments: The beneficiary lived with her natural mother
until August 1960, a little over two years after her birth, when her
natural mother abandoned her. Her father has supported her since that
time. The beneficiary's father came to the United States in December
1960. Until the petitioner herself came to the United States in 1962, she
took care of the beneficiary in Jamaica. The petitioner and her husband
have made frequent trips to Jamaica and have visited the beneficiary
each time. The petitioner became a United States citizen in 1968. She
and her husband, also a naturalized United States citizen, have sent
approximately $100 per month to the couple with whom the beneficiary
has been staying, for her clothing, tuition, and maintenance.
The record contains a copy of an adoption order from the Supreme
Resident Magistrate's Court of Halfway-Tree, St. Andrew, Jamaica,
showing that the petitioner and her husband legally adopted the beneficiary on March 28, 1973, when the beneficiary was 14 years and nine
months old.
The petitioner believes that the beneficiary qualifies as her stepchild 1, and hence as her child, under section 101(b)(1) of the Act. This is
the question that must be resolved. In his denial of the petition the
district director stated that because the beneficiary was illegitimate, she
could not qualify as the petitioner's child.
In section 101(b)(1)(B) of the Act a "child" is defined as an unmarried
person under the age of 21 who is:
(B) a stepchild, whether or not born out of wedlock, provided the child had not
reached the age of eighteen years at the time the marriage creating the status of
stepchild occurred. . . .
Several significant eases have helped to clarify the definition of a
"stepchild." In Nation v. Esperdy, 239 F. Supp. 531 (S.D.N.Y. 1965),
the court noted that despite common dictionary definitions of a stepchild
as a child by a former marriage, the language of section 101(b)(1)(B)
contemplates that an illegitimate child may also be considered a stepchild for immigration purposes.
Id. at 533. In the Nation case, the
beneficiary had been abandoned in infancy by his natural mother. The
petitioner began caring for the beneficiary when he was two years old,
3 Although the beneficiary was legally adopted, the petitioner is not seeking her admission as an adopted child because the beneficiary was not under the age of 14 when she was
adopted, and is therefore not a "child" for immigration purposes under section 101 -
(3)(1)(E), the subsection governing adopted children.
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Interim Decision #2401 -
and she married his natural father three- years later, in 1952. They all
lived together until the petitioner immigrated to the United States in
1957. Her h•sband followed in 1958. The petitioner and her husband
adopted the beneficiary when he was 16. As soon as the petitioner
obtained Uir.ted States citizenship, she sought to reunite the family by
petitioning for non-quota status for the beneficiary. The court held that
the child was the petitioner's stepchild, within the meaning of section
101(b)(1)(13) and was eligible for nonquota status.
We followed Nation in Matter of The, 11 I. & N. Dec. 449 (BIA 1965).
In that case the petitioner was the stepchild, who had been born out of
wedlock, and the beneficiary was her stepmother. We found that there
was ample evidence of a bona fide family unit including the petitioner,
the beneficiary, and the natural father, which continued until after the
petitioner reached the age of 21 and was married. She immigrated to the
United States in 1953, and ten years later filed a petition on behalf of her
stepmother. Unable to distinguish The from the Nation case, we approved the Nisa petition.
The one factor which distinguishes the present case from Nation and
The is that the marriage of the petitioner and the beneficiary's father
took place before rather than after the birth of the beneficiary. In
Matter of Green,
11 I. & N. Dec. 546 (BIA 1965), and Matter of Young,
12 I. & N. Dec. 340 (BIA 1967), cases involving children born of adulterous relationships, we followed Nation and dismissed the appeals on two
grounds: (1) the marriage creating the asserted steprelationship had not
taken place subsequent to the birth of the beneficiary, and (2) there was
no preexisting family unit.
The petitioner in Young made a motion for reconsideration by this
Board on the basis of an intervening decision, Andrade v. Rsperdy. 1 In
that case the court held that the petitioner's husband's illegitimate
daughter was classifiable as a stepchild under the immigration law,
despite the fact that there was no preexisting family unit including the
petitioner, the beneficiary; and the beneficiary's father. 3 In denying the
motion we stated that adulterine children are the issue of adulterous
intercourse and are regarded more unfavorably than the illegitimate
offspring of tingle persons. We went on to say that ". . . it is difficult to
understand the argument that the beneficiary in this case can be regarded as a stepchild. The beneficiary is simply an illegitimate adulterine child. The child was born during a then existing marriage as the
result of illicit intercourse between the married natural father and a
2 270 F. SupP. 516 (S.D.N.Y. 1967).
3 In Matter of Soares,
12 I. & N. Dec. 653 (D.D. 1967; BIA 1968), we refused to apply
the holding of Andrade beyond the Second Circuit, and in Matter ofAmado and Monteiro,
13 1. & N. Dec. 179 (BIA 1969), we further limited the application of Andrade to the
Southern District of New York, where that ease arose.
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Interim Decision .#2401
female servant and there never has been a subsequent marriage by the
natural parents of the child so as to create a steprelationship." Matter of
Young, 12 L & N. Dec. 544, 545 (BIA 1967). We declined.to discuss the
holding in Andrade, and based our decision to dismiss the appeal on the
ground that there was no steprelationship because the marriage which
would have created such a relationship had not' taken place after the
birth of the beneficiary. We now recede from that position.
Section 101(b)(1)(B), which defines "stepchild;" does not in terms
require that the marriage take place after the child is born. 4 All it
requires is that the marriage have taken place before the child's 18th
birthday. The intent of Congress was obviously to preclude recognition
of an adult as a stepchild where the marriage creating the relationship
took place after the child reached age 18. Recognizing this beneficiary is
in keeping with, and does no violence to, that intent. Here the beneficiary had not reached the age of 18 when the marriage between the
petitioner and the beneficiary's father occurred; she had not even been
born then. Moreover,"a close family unit, including the beneficiary, her
father, and the petitioner, appears to have existed from August 1960,
when the beneficiary's mother abandoned her, until December 1960,
when her father departed for the United States. The petitioner continued to care for the beneficiary for. two more years, until the petitioner's own departure for the United States. In addition, the petitioner
and the beneficiary's father maintained their relationship with the beneficiary through frequent visits and regular financial support.
We hold that the petitioner has established the existence of a steprelationship between herself and the beneficiary, since the marriage between the petitioner and the beneficiary's father,, which created the
status of stepchild, occurred before the beneficiary reached the age of
18. We further hold that adulterine children. should be treated like other
illegitimate children. • - •
We overrule our holding inMatter of Young, AL& N. Dec. 544 (BIA
1967), Matter of Young, 12 I. & N. Dee. 340 (BIA 1967), and Matter of
Green, 11 I. & N. Dee. 546 (BIA 1965), insofar as they are inconsistent
with this opinion.
ORDER: The appeal is sustained and the petition is approved, classifying the beneficiary as the child of the petitioner.
BEFORE THE BOARD
(MARCH 18, 1975)
The Immigration and Naturalization Service has moved that we reconsider Our decision of November 20, 1974, in which we held that the
4 That the definition of "stepchild" deviates from the generally accepted definitinn is
recognized in Nation v. Esperdy, supra at 533.
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Interim Decision #2401
beneficiary is the stepchild of the petitioner, although she was born out
of wedlock alter the marriage of the petitioner and her husband, to the
petitioner's E.usband and another woman. The motion will be denied.
Having carefully considered the arguments of the Service in support
of its motion to reconsider, as well as those of counsel for the petitioner
in his brief in opposition to the Service motion, we see no reason to alter
our decision.
ORDER: The motion is denied. -
David L. Milhollan, Chairman, and Irving A. Appleman, Board
Member, abstained from consideration of this case.
Louis P. Maniatis, Board Member, dissents without opinion.
BEFORE THE ATTORNEY GENERAL
(June 30, 1975)
Petitioner, Ida May Stultz, a United States citizen, has applied for
immediate relative status for the beneficiary, Susan Stultz, as her child
under section 201(b) of the Immigration and Nationality Act (hereinafter referred to as the Act), 8 U.S.C. §1151(b). In a decision dated March
1, 1974, the district director denied the petition. On appeal to the Board
of Immigration Appeals the district director's decision was reversed. In
accordance with the request of the Commissioner of the Immigration
and Naturalization Service (Service), this matter has been referred for
my review pursuant to
8 CFR §3.1(h)(1)(iii). The question involves the
proper interpretation of the term "stepchild" as used in §101(b)(1)(B) of
the Act,
8 U.S.C. §1101(b)(1)(B).
The facts are as follows:
The petitioner was married on January 1, 1955, in Jamaica. On June
19, 1958, the beneficiary was born in Jamaica to the petitioner's husband
and a woman other than the petitioner.' An affidavit executed by the
petitioner and her husband states that the beneficiary lived with her
natural mother until August 1960, a little over two years after her birth,
when her natural mother abandoned her, and that the beneficiary has
since been supported by her natural father, petitioner's husband. Petitioner's husband came to the United States in December 1960. Following his departure, the petitioner cared for the child until she herself
came to the United States in 1962. The affidavit further declares that
the petitioner and her husband have made trips to Jamaica and have
visited the beneficiary each time, and that they have sent approximately
While the Immigration and Naturalization Service argued before the Board that there
was insufficient evidence to establish the existence of any relationship between petitioner's husband and the beneficiary, that issue is not raised here. See Request for
CertYleutiou to ..44torney General of the Imudgratiun and Naturalization Service, Sled
April 15, 1975.
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Interim Decision #2401
$100 a month to the couple with whom the beneficiary has been staying,
for her clothing, tuition and maintenance. Petitioner was naturalized as
a United States citizen in 1968. Her husband is also a naturalized United
States citizen.
The record contains a copy of an adoption order issued by the Supreme Resident Magistrate's Court of Halfway-Tree, St. Andrew,
Jamaica, showing that the petitioner and her husband legally adopted
the beneficiary on March 28, 1973, when the beneficiary was 14 years
and 9 months of age. Although the beneficiary was legally adopted, the
petitioner is not seeking her admission as an adopted child because the
beneficiary was not under the age of 14 when she was adopted and is
therefore not a "child" for immigration purposes under §101(b)(1)(E) of
the Act, the subsection governing adopted children.
If the beneficiary is petitioner's "child" she is eligible for immediate
relative status. "Child" is defined in §101(b)(1) of the Act to include:
(1) ... an unmarried person under twenty-one years of age who is-
…
(B) a stepchild, whether or not born out of wedlock, provided the child had not
reached the age of eighteen years at the time the marriage creating the status of stepchild
occurred. . . . 4
The question here is a narrow one: Whether the illegitimate child of one
spouse becomes the stepchild, as the term is used in the Act, of the
other spouse when the child is conceived and born during the existence
of the marriage. It is clear that an illegitimate child of one spouse
becomes the stepchild of the other spouse when the child is conceived
prior to that marriage. See Nation v. Esperdy, 239 F. Supp. 531
(S.D.N.Y. 1965); Andrade v. Esperdy,
270 F. Supp. 516 (S.D.N.Y.
I967). 3
The Service argues that the Board's inclusion of illegitimate children
conceived during the existing marriage within the term "stepchild" does
violence to the commonly accepted definition of that word as a relationship of a legitimate child created through the remarriage of a parent.
See, e.g., Merriam Webster New International Dictionary 2237 (3d ed.
-
1961). While apparently conceding that Congress departed from this
strict definition through the explicit inclusion of an illegitimate child
conceived and born prior to an existing marriage, the Service argues
that Congress did not intend to include children who are adulterine with
respect to the existing marriage.
2 The phrase "whether or not born out of wedlock" in subsection (B) was added in the
1957 amendments to the Act. Pub. L. No. 85416, 71 Stat. 639.
This would be so whether or not conception resulted from an adulterous relationship.
The bovine of subsection (B) makes no distinction between adulterine children "born out
of wedlock," and other children "born out of wedlock." Nor does the legislative history
contain any hint of such a distinction.
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Initially, .the Service asserts that use of the :language ". . .provided
the child had not reached the age of eighteen at the time the marriage
creating the status of stepchild occurred. .•." in subparagraph (B) presupposes the birth of the child prior to that marriage. It further argues
that, starting from a definition of stepchild as (1) legitimate and (2) born
prior to the existing marriage, Congress, in explicitly removing only the
first qualification, left the second intact.
While the Service's arguthents are plausible, the language of subsection 101(b)(D(B) does not lead inevitibly to this result. The quoted
language seams intended only to insure that the relationship (through
the natural parent) between the petitioner and the child sought to be
admitted as an immediate relative existed in the child's formative years,
when the emotional bonds of:a parent-child relationship are primarily
formed. The provision-deals with birth prior to the existing marriage
simply, because only that •situation presents the disqualifying factor of
concern to the Congress. Nor is the normal definition of the word
"stepchild" controlling when, as here, the "step" prefix of that term has
been expressly modified by Congress in such a fashion that the prefix
can as easily be read to denote only a relationship dependent solely upon
marriage to a natural parent as to establish some intermediate category
requiring marriage subsequent to the child's birth.
Ultimately, however, the issue must turn not on refined semantic
analysis, bu: on a realistic assessment of the intent of Congress. The
legislative history' does not •speak directly to the point. 4 What does
emerge, however, from the legislative history of the amendments adding the phrase "whether or not born out of wedlock" is a distinct sense
that any doubt in interpretation is to be resolved in favor of recognition
of a "stepchild" relationship.
In view of the clearly expressed legislative intention [regarding the Immigration and
Nationality A.ct] to keep together the family unit wherever possible, it would appear to
, be a desirable result, based upon legal and equitable considerations, to adopt a liberal
construction. No harm could possibly result from such a construction, and the consequaices woad fulfill the humane considerations involved in keeping intact the famgy
unit.
House Report, 1957 Congressional & Administrative News at 2021.
While the : egislative history does in some places allude to children "born out of
wedlock prior to the marriage of (their] mother to a United States citizen," see, e.g.,
Rapt. No. 1199, 85th Cong., 1st Sess. (1957) (hereinafter' referred to as the House
Report), U.S. Code Congressional & Administrative News, 2016, 2020; 103 Cong. Rec.
16301 (Remarks of Representative Celier), these references are to the facts involved in
the "particular 3bnoxious administrative action" which highlighted the need for Congressional action. -Se• Andrade v. Esperdy, supra, 270 F. Supp. at 519. For the reasons sdt out
below, as well as those'set out in Nation v. Esperdy, supra and Andrade v. Esperdy.
supra, it is my 'new that the amendments passed by Congress in 1957 were limited solely
to the facts of the specific case which prompted their consideration.
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Interim Decision #2401
In the same report, the House Committee on the Judiciary stated:
Sympathetic and humane considerations dictate an interpretation which would not
separate the child, whether legitimate or illegitimate, from its alien parent, particularly
in those cases where the citizen parent has executed a petition for the issuance of a
nonquota visa to such child and has evidenced an intent to regard the illegitimate
stepchild of his spouse as part of his own family and to raise that child as a part of the
famUy unit.
Id. Granting of the petition in the present ease would be far more
consistent with this policy than a denial based on the Service's narrow
reading. There is no indication that Congress anticipated the specific
distinction urged by the Service. Nor, when the spouse of the natural
parent desires to raise the child as part of the family unit, is the value of
such a distinction apparent.
Finally, it appears that if petitioner and her husband were to obtain 'a
divorce and then remarry, the sole obstacle to the child's admission
under the Service's theory would be eliminated. And yet there would
have been no change in the nature of the child's birth, the emotional
relationship within the family, or any other factor of conceivable relevance to the immigration laws. It is difficult to impute to Congress the
establishment of such a scheme in an act designed to "provide for a fair
and humanitarian adjudication of immigration cases." Id. at 2020.
For the reasons stated above, it is my view that adulterine children,
irrespective of the time of their birth, should be treated like other
illegitimate children under section 101(b)(1)(B) of the Immigration and
Nationality Act. The order of the Board of Immigration Appeals approving the petition and classifying the beneficiary as the child of the
petitioner is affirmed.
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